Mississippi’s lone abortion clinic will remain open for now, after an appeals court criticized as probably illegal a state law that requires doctors who perform the procedure obtain hospital admitting privileges.
The U.S. Court of Appeals in New Orleans said enforcement of the law will remain suspended while a suit challenging it moves toward trial. In a 2-to-1 decision, the three-judge panel upheld a lower court’s rejection of Mississippi’s argument that women may still obtain abortions in neighboring states if the law is enforced.
“Mississippi may not shift its obligation to respect the established constitutional rights of its citizens to another state,” U.S. Circuit Judge Grady Jolly wrote.
The ruling isn’t the final word on the law, and the appeals panel narrowed the scope of the injunction to apply only to the parties in the case. As a result, any new Mississippi abortion clinics would have to file their own lawsuit.
“Today’s ruling ensures women who have decided to end a pregnancy will continue to have access to safe, legal care for now in their home state,” Nancy Northup, president of the Center for Reproductive Rights, said in a statement. “But there is still only one clinic in the entire state, and it is still threatened by a law advanced by politicians over the opposition of respected medical associations, with the sole intent of closing that clinic permanently.”
Lawyers for the clinic said Mississippi’s argument that banning abortion in one state is constitutional because it can be obtained in another would turn back womens’ rights back more than 40 years, before the U.S. Supreme Court legalized the procedure in the 1973 ruling Roe v. Wade.
Before that ruling, “women without financial means had to turn to unsafe and illegal methods of ending unwanted pregnancy,” lawyers for the Jackson Women’s Health Organization said.
Jan Schaefer, a spokeswoman for the Mississippi attorney general’s office, said in an e-mail that the staff is reviewing the ruling and considering its options.
The Mississippi law, echoing others around the nation, requires doctors at abortion clinics to have admitting privileges at local hospitals. None of the hospitals contacted would accept two candidates the Jackson clinic had proposed, the clinic’s lawyers said.
The clinic argued that eliminating access to abortion in Mississippi will lead to a “patchwork system, where constitutional rights are available in some states but not others.”
More than 200 abortion restrictions have been enacted nationwide since a Republican-led push in state legislatures began in 2011. More state abortion limits were passed from 2011 to 2013 than in the previous decade, according to a Jan. 2 report by the Guttmacher Institute, a reproductive-rights advocacy group.
A different three-judge panel of the New Orleans appeals court ruled in March that Texas could enforce its own local hospital-admitting privileges requirement on abortion doctors, even though the measure left women in wide swaths of the second-largest state without access to legal abortion.
Requiring Texas women to travel as far as 150 miles (240 kilometers) to obtain the procedure from a licensed clinic wasn’t an undue burden on their constitutional rights, the judges said.
Mississippi Republican Governor Phil Bryant, who vowed to make Mississippi “abortion-free” when he signed the state’s admitting- privileges law in April 2012, urged the appeals court to uphold the regulation, as it had in Texas.
Pointing to licensed abortion clinics that remain open in Louisiana, Alabama and Tennessee, Bryant said in a court filing: “The entire state of Mississippi is within a 175-mile radius of one of these cities.”
Requiring abortion doctors to have local hospital privileges is a “legitimate health and safety regulation, justified by the medical benefits provided to patients,” Mississippi’s lawyers said in a court filing. “The state has every right to require that abortion facilities meet the same minimum standards as all other ambulatory surgical facilities.”
A federal judge in Austin is considering whether to block another Texas abortion restriction, which may close all but 10 licensed facilities in the state when it takes effect later this year. That rule requires abortion clinics to meet the same physical standards as outpatient surgery centers, criteria opponents said do nothing to improve women’s health.
Texas has urged the Austin judge to uphold the surgical-center standards, in part because West Texas women left without reasonable access to in-state abortion providers can go to New Mexico clinics for services.
The case is Jackson Women’s Health Organization v. Mary Currier, 13-60599, U.S. Court of Appeals for the Fifth Circuit (New Orleans).